Law Commons^™

Long Overdue? An Exploration Of The Status And Merit Of A General Public Performance Right In Sound Recordings, Matthew S. Delnero

Vanderbilt Journal of Entertainment & Technology Law

In the sound recording performance rights debate, positions advocated by broadcasters are the polar opposite of those taken by recording artists and labels. Considering all the factors, it is likely that neither claim is entirely meritorious. Both are too extreme to be supported by available evidence. Radio broadcasters ignore what would amount to at least some international harmonization and added foreign royalties, as well as the potential creation of new works that would not be economically viable without a performance royalty. Furthermore, broadcasters fail to adequately account for the possible inequity of granting performance royalties to those who compose music …

Satellite Wars: Culture Vs. Expression, Alex Colangelo

Vanderbilt Journal of Entertainment & Technology Law

This Article first describes satellite technology and the process by which Canadians access American satellite broadcasts. It then examines the competing issues of preservation of Canadian business and culture, versus the freedom of expression as set forth in section 2(b) of the "Canadian Charter of Rights and Freedoms" (hereinafter "Charter"). Next, the Article considers case law preceding Bell ExpressVu, and presents an examination of the findings of the Supreme Court of Canada in Bell ExpressVu. The Article will then argue that the Supreme Court incorrectly found that there existed no ambiguity in the various interpretations of section 9(l)(c), and that …

New Media, New Rules: The Digital Performance Right And Streaming Media Over The Internet, Joseph E. Magri

Vanderbilt Journal of Entertainment & Technology Law

Streaming music over the Internet, or what otherwise is known as webcasting or Internet radio, has the potential to become the single most revolutionary means of music transmission ever developed.' In order to appreciate the potential impact of Internet radio, it is helpful to understand that Internet radio has the ability to venture far beyond the at-home personal computer that is tethered to a wall and logged-on to the Internet. With advances in wireless broadband technologies, such as wireless fidelity or Wi-Fi, and the growing availability of Internet content via mobile devices,' Internet radio will soon become widely available on …

Creative Works As Negotiable Instruments: A Compromise Between Moral Rights Protection (And) The Need For Transferability In The United States, Julie Levy

Vanderbilt Journal of Entertainment & Technology Law

Using the Holder-in-Due-Course Doctrine, authors may reclaim a work even after it is sold, but only if the holder knew or had reason to know of the alleged moral right at the time he or she purchased the work. This accomplishes the goal of protecting moral rights while preserving the transferability of creative works in the United States. Putting the burden on the author to define and pronounce moral rights interests early on, so as to give notice to subsequent buyers, allows subsequent purchasers to make more informed business decisions. As a result, subsequent purchasers and the entertainment industry as …

The United Student-Athletes Of America: Should College Athletes Organize In Order To Protect Their Rights And Address The Ills Of Intercollgiate Athletics?, Marc Jenkins

Vanderbilt Journal of Entertainment & Technology Law

This note will focus on the legal feasibility and practicality of forming a student-athlete players association or union. It assumes that a strike is a possible avenue the CAC may take in the future. Unlike the professional sports unions, the make-up of athletes on college campuses is in constant flux. This will obviously make it harder to initiate a strike. Part I of the note will concentrate on the realities of major college sports and the athletes that play them. This background will establish why student-athletes may want to form a players association. Part II will analyze the NCAA governing …

The Balance Between Recording Artists And Recording Companies: A Tip In Favor Of The Artists?, Nicholas Baumgartner

Vanderbilt Journal of Entertainment & Technology Law

To protest the 1999 Copyright Act amendment, recording artists Don Henley and Sheryl Crow, among others, co-founded the RAC. While formed to serve as a "voice for artists' rights," the primary impetus behind its founding was to lobby Congress to delete sound recordings from the definition of "works made for hire" in the Copyright Act. Together with intense lobbying by AFTRA, individual recording artists and legal scholars, the RAC succeeded--in October 2000, sound recordings were removed from the definition of "works made for hire."

The momentum gained by artists in this lobbying effort inspired an attack on the other proverbial …

Pop Goes The Commercial: The Evolution Of The Relationship Between Popular Music And Television Commercials, Nora Miles

Vanderbilt Journal of Entertainment & Technology Law

Although the use of new pop songs in commercials is a recent development, the fact that music plays an important role in advertising is certainly not news. Music is and has always been an integral part in nearly all commercial advertising campaigns. Since the advent of radio and television the consumer public has been exposed to marketing through music. In order to understand the implications of the trends in music advertising, this note examines the more traditional schemes of music in advertising. To that end, there are several different routes an advertiser can choose when selecting music for a particular …

Almost Famous: Reality Television Participants As Limited-Purpose Public Figures, Darby Green

Vanderbilt Journal of Entertainment & Technology Law

This Note begins with an overview of the basic facets of privacy law, focusing on the tort of the public disclosure of private facts and its interaction with the First Amendment. Next, this Note explores the differences in rules for public, private, and involuntary public figures. The law of defamation is offered as a model for privacy law to emulate, specifically, the limited-purpose public figure created under Gertz and its progeny. Then, the issue of whether one's status as a public figure may diminish over the passage of time is considered. This Note posits that limited-purpose public figures should exist …

New Video Game: Japan's Video Game Producers Lose At The Litigation Game, Dan Rosen

Vanderbilt Journal of Entertainment & Technology Law

Video games present a legal problem that may be more difficult for courts to solve than the games themselves. In Japan, each court took a somewhat different approach. In its opinion, the Tokyo District Court tried to differentiate between movies and video games by focusing on the role of the audience. That court emphasized the fact that while movie audiences are passive and have no effect on the course of the movie, video game audiences actively affect the progression of the storyline. To illustrate the difference that the Tokyo Court emphasized, consider the Pokemon cast. They were originally characters in …

Fiduciary Duty: Can It Help Calm The Fears Of Underpaid Artists?, Wendy Bartholomew

Vanderbilt Journal of Entertainment & Technology Law

The purpose of this note is to examine the legal causes and consequences of what many consider poor label accounting practices, and to propose a solution: imposing a duty on record labels to correctly and transparently collect and distribute artist royalties. If labels operate under a fiduciary duty to their artists when receiving and paying royalties, artists will get paid what they are due. If they are not, artists will have viable remedies available to them--remedies that create an incentive for labels to make positive changes in the way they handle royalty accounting. This will, in turn, work to repair …

The E-Rated Industry: Fair Use Sheep Or Infringing Goat?, Christina Mitakis

Vanderbilt Journal of Entertainment & Technology Law

This Note explores the copyright issues presented by the litigation between companies that sanitize movies for viewing by the general public and the studios and directors involved in the creation of the edited movies. Collectively, these companies comprise what is generally referred to as the e-rated industry.' Certain companies within the e-rated industry use digital editing software to edit profanity, sex and violence from popular movies, while other companies provide software allowing viewers to edit their own DVDs. In all cases, this editing is done without the consent of the moviemakers. CleanFilms, which rents out e-rated movies, defines e-rated movies …

The Impact Of Digital Distribution On The Duration Of Recording Contracts, Revella Cook

Vanderbilt Journal of Entertainment & Technology Law

The success of digital distribution depends on various factors that shape today's music industry. Part I will examine the traditional method of releasing an album and its impact on the duration of recording agreements. This section will focus on the recent legislative debate within California and will illuminate problems regarding the duration of a standard recording contract. Part II investigates modern methods of distribution and whether digital distribution is a viable alternative for the retail of music. Part III discusses innovative marketing models that could reduce costs associated with an album's release. Part IV examines barriers that the music industry …

Idea Men Should Be Able To Enforce Their Contractual Rights: Considerations Rejecting Preemption Of Idea-Submission Contract Claims, Celine Michaud, Gregory Tulquois

Vanderbilt Journal of Entertainment & Technology Law

It is a long-standing and general rule that ideas are "free as the air" as Justice Brandeis eloquently stated in the dissent to the seminal case International News Service v. Associated Press.' This axiom of copyright law expresses the idea that copyright does not protect ideas but only protects the expression of ideas in a work. The distinction between unprotected ideas and protected expression is often referred to as the idea-expression dichotomy...

The principle of the idea-expression dichotomy was initially stated in Baker v. Selden, and later cases further articulated this principle, so that it has become one of the …

Major League Baseball's Answer To Salary Disputes And The Strike:, Brien M. Wassner

Vanderbilt Journal of Entertainment & Technology Law

Initially, this paper will briefly consider arbitration in general and then discuss the evolution of FOA and its implementation into MLB salary disputes. This paper will thereafter analyze the praises and criticisms of FOA, and establish that FOA is a superior mechanism for resolving salary disputes in professional sports because the FOA system is designed to facilitate negotiation and settlement rather than to resolve the dispute subsequent to adversarial hearings.

Solutions Are On Track, Beth A. Thomas

Vanderbilt Journal of Entertainment & Technology Law

This Note discusses the need to solve the copyright problems caused by digital file sharing over peer-to-peer networks and the possible solutions that would be acceptable to both the media industries and the public. While it is likely that the problems caused by file sharing will not decrease significantly by placing post-sales control in the hands of the artists, it is probable that legislative and industry driven technical counter-measures will be able to decrease illegal file sharing in an acceptable way.

Part I outlines copyright in general and how digital technology is pushing at the boundaries of copyright law. Part …

Is There Judicial Recourse To Attack Spammers?, Ashley L. Rogers

Vanderbilt Journal of Entertainment & Technology Law

This Note will discuss the issue of non-commercial spam through the prism of a case recently decided by the California Supreme Court, Intel v. Hamidi. Until recently there was no federal regulation for unwanted electronic communication and common law was the only potential solution. Part I of this Note will discuss the nature of spam, focusing on the distinction between commercial e-mail and bulk e-mail and the importance therein. Part II will detail the history and the legal doctrine of trespass as it applies to the Internet. Part III will summarize the case of Intel v. Hamidi as it struggled …

The Reality Of Fantasy: Addressing The Viability Of A Substantive Due Process Attack On Florida's Purported Stance Against Participation In Fantasy Sports Leagues That Involve The Exchange Of Money, Neville F. Dastoor

Vanderbilt Journal of Entertainment & Technology Law

Fantasy sports leagues have swept the nation and have become a favorite pastime for millions of Americans. For a large portion of fantasy participants, the experience is shared with an intimate group and provides a means for maintaining relationships after ways have been parted. College and high school friends are able to stay connected in a fun and competitive way. For providers, fantasy sports leagues provide a profitable business opportunity in a thriving market. Florida's position of regulation, articulated by an Attorney General's advisory opinion that has never been challenged or refuted, unreasonably attacks these intimate associations. By this assumed …

Copyright And The First Amendment: After The Wind Done Gone, Joseph M. Beck

Vanderbilt Journal of Entertainment & Technology Law

On March 16, 2001, plaintiff SunTrust Bank filed a complaint in the United States District Court for the Northern District of Georgia against defendant Houghton Mifflin Company, alleging copyright and trademark infringement based on defendant's yet-to-be published novel The Wind Done Gone. On March 23, plaintiff filed a motion for a temporary restraining order and preliminary injunction barring the book's imminent publication. The district court held a hearing on the motion for a temporary restraining order on March 29,2001, and then set down a second hearing for April 18, 2001. On April 20,2001, the district court filed a fifty-one page …

Practice Before The Copyright Arbitration Royalty Panel In 17 U.S.C. § 111 Distribution Proceedings, Mark J. Davis

Vanderbilt Journal of Entertainment & Technology Law

The 1976 Act showed foresight in extending the section 115 compulsory phonorecord license model to secondary transmissions under section III. Congress' intent was to encourage flexible market forces to set the value of cable rebroadcasts. Instead of statutory rates, they fixed minimal guidelines for the distribution of collected retransmission royalties. Originally an obscure and very technical section of the Copyright Act, the impact of section III has expanded with the merger of cable television, radio, cable, satellite, and broadband distribution of digital media. The millions of dollars in royalties paid annually by cable systems provide a tempting target for copyright …

Justice Isn't Deaf--A Behind The Scenes Look At How Bijoux Records' Executives Discuss The Potential Liability For Violence, Renee M. Moore

Vanderbilt Journal of Entertainment & Technology Law

The music industry is an interesting phenomenon. It is a world that exists on image--and everyone has a say. For that very reason, the music industry is no stranger to critics. At its heart, they are what the industry is all about. Critics are the driving force in the business--their written and verbal exchange of ideas predicts the rise and fall of stars. Critics come in all shapes and sizes--they are the everyday consumer, the media at large, the hopeful artist, the record company executive, the legal scholar, and even our nation's government. This article will take you on a …

The New Software Jurisprudence And The Faltering First Amendment, Liam S. O'Melinn

Vanderbilt Journal of Entertainment & Technology Law

Given that courts reviewing restrictions on the development and distribution of software are increasingly invoking the First Amendment, it should follow that software will receive strong protection. Yet, while there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term "the new software jurisprudence" cast severe doubt on the ability of the courts to apply the First Amendment so as to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more, with the ironic …

The Digital Music Dilemma: Protecting Copyright In The Age Of Peer-To-Peer File Sharing, Natalie Koss

Vanderbilt Journal of Entertainment & Technology Law

This paper seeks a resolution between the need to eliminate copyright infringement and the desire to encourage new technology. This paper will suggest that the music industry would be better off directing resources toward solutions such as compulsory licensing, royalty collection, and working with hardware manufacturers to discourage copyright infringement. These solutions would allow the industry to take advantage of file sharing now rather than expending resources in court where the desired result of ending P2P programs may never come.

A Sample For Pay Keeps The Lawyers Away: A Proposed Solution For Artists Who Sample And Artists Who Are Sampled, Charles E. Maier

Vanderbilt Journal of Entertainment & Technology Law

The law of copyright has its origins in the constitu- tion of the United States, which grants congress the power "to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discov- eries. To carry out this mandate, Congress passed the Copyright Act, establishing the basic rights to be enjoyed by the copyright owner, including the right of adaptation, and the right of reproduction. ''

Sampling seems to be a clear violation of these exclusive rights. However, Congress has provided an excep- tion, the …

Eldred V. Ashcroft: Challenging The Constitutionality Of The Copyright Term Extension Act, Justice J. Rillera

Vanderbilt Journal of Entertainment & Technology Law

This Note explores opposing arguments on the constitutionality of the CTEA under the Copyright Clause, which gives Congress the power "[t]o promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to the irrespective Writings and Discoveries." Part I of this Note analyzes whether Congress violated the "limited Times" restriction by extending the terms of existing copyrights. Part II examines whether the CTEA promotes the "Progress of Science' ' Finally, Part Ill highlights questions the U.S. Supreme Court must resolve to maintain the balance between the rights of the …

Applying Pen Register And Trap And Trace Devices To Internet Communications, Rich Haglund

Vanderbilt Journal of Entertainment & Technology Law

This note will explain how the different surveillance methods work: wire taps, pen register and trap and trace devices. It will outline the development of case law and legislation defining what constitutes unlawful searches and seizures involving electronic communications. After explaining how email and internet addresses are collected (and whether the FBI's tool for collection works within the bounds set by the law), this note will discuss the provisions of the Patriot Act that regulate collection of that information. This note will show, using the application of pen register and trap and trace devices to the Internet as an example, …

Making A Mountain Out Of A Mogul: Jeremy Bloom V. Ncaa And Unjustified Denial Of Compensation Under Ncaa Amateurism Rules, Gordon G. Gouveia

Vanderbilt Journal of Entertainment & Technology Law

This Note argues that the NCAA's interpretation of the amateurism provisions of the NCAA Division I Manual, with respect to Jeremy Bloom, is unreasonable, particularly in light of the NCAA's treatment of other dual-sport professional athletes. Consequently, the NCAA should create an exception to its amateurism provisions allowing Bloom and similarly-situated student-athletes to earn income from sources unrelated to the amateur sport in which they compete. Furthermore, since the NCAA Bylaws constitute a contract to which student-athletes are third-party beneficiaries, courts should provide a forum to ensure the consistent and equitable application of the provisions of that contract. Part I …

Business, The Arts & The Role Of The Copyright Act, Keith C. Hauprich

Vanderbilt Journal of Entertainment & Technology Law

Two recent court decisions examined, addressed, and adjudicated parallel issues potentially determining the scope of rights of legions of recording artists and freelance authors. While the core of each case centered on the fact that the agreements between each of the respective litigants did not expressly grant (or reserve) the exercise of the particular rights in dispute, the decisions of the courts have seemingly antithetical results. A review of each court's application of the governing law to the disparate facts of each case presents an interesting illustration of the relationship among business, the arts, and the role of the Copyright …

A Wolf In Sheep's Clothing: Wolf Versus Ashcroft And The Constitutionality Of Using The Mpaa Ratings To Censor Films In Prison, Colin Miller

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article looks at the history of the federal courts' jurisprudence in deciding prisoner's rights cases, culminating in the current test adopted in on Turner v. Safley. Part II considers the purposes behind the Zimmer Amendment and looks at the district and appellate court rulings in the Pennsylvania prisoners' case, Wolf v. Ashcroft. Part III looks at the history of the MPAA ratings and cases dealing with their legal enforceability. Finally, Part IV applies Turner's test to the Zimmer Amendment and the Pennsylvania policy prohibiting R, X, and NC-17 movies from being shown in prison, ultimately concluding …